Marriage - The prevailing norm - most couples are married and stay married
(Probert, 2012)
- “Majority of people, or at least of governments, not only in England but
Europe-wide, regard marriage as an age-old insttuton, valued and
valuable, respectable and respected, as a means not only of encouraging
monogamy but also the procreaton of children and their development
and nurture in a family unit in which both maternal and paternal
influences are available ('ir Mark Poter in Wiilk inson)
- Marriage has contractual and insttutonal elements, but it is also sui
generis, a law unto itself (Heaphy, 2013)
1. Wihat is the signifcance of marriage? Wihy, if at all, is it so important in our society?
2. Wihy are there so many formalites for creatng a valid marriage/civil partnership?
,On Marriage as a Every Family Maters (2000) Centre for 'ocial Justce, Ian uncan 'mith Lewis,
`Marriage and Cohabitaton and the Nature of Commitment' (1000) 11 CFLQ 355
'ocial / Legal iduck (2003) Ch 2, Law’s Families
R Probert, (2000) Marriage Law and Practce in the Long Eighteenth Century. 2 A
Insttuton Reassessment (Cambridge: CUP).
B Heaphy et al, 'ame-'ex Marriages: New Generatons, New Relatonships (2013)
– all interestng, but the introducton gives a good overview
Balfour v Balfour [1010] 2 KB 571
Auchmuty (2012)
- 'tatstcs and contemporary commentary show how marriage, once the ultmate and only acceptable
status for women, has declined in social signifcance to such an extent that today it is a mere lifestyle
choice.
- 1. Marriage, from being of such central importance that no other status was acceptable for women in the
1050s, has today lost so much of its power as to have become a mere lifestyle choice for the majority of
Britsh women, and one, moreover, that more and more people are rejectng.
- Historically: Law privileging marriage and contributng to its strong practcal reasons
- This incentve is accompanied by a correlatve disadvantage - fnancial reliance and hence
subservience
- Today: A Britsh 'ocial Attudes survey found that two-thirds of respondents saw litle diference
between marriage and cohabitaton and only one in four thought marriage made people beter
parents. Marriages are more synonymous with weddings, an event, rather than a commitment.
- 2. Wihile many factors contributed to its decline, the most important was the feminist critiue and example.
- 'exual Revoluton: Normalisaton of pre-marital sex, change in conventonal morality, availability
of birth control pill - No need to be ted down in marriage to have sex or as a conseiuence of sex
(i.e. birth)
- Beter Educaton, More Jobs: Greater university atendance rate, beter fnancial independence
- ivorce Law Reform: Ostensible goal was to improve the insttuton of marriage by allowing
couples who were already married to other people to divorce ex spouses. Had the unantcipated
conseiuence of many people living outside marriage.
- Feminism Movement: Rejecton of marriage driven by an analysis, a critiue, a vision of a diferent
society, in which women had choices and alternatves: in Elizabeth Wiilson’s words, women had to
be able to ‘‘imagine a diferent k ind of life for themselves’’ (Wiilson 1077, 14). That vision was
provided by feminism. E.g. Wiomen’s Liberaton Movement
- 3. This loss of signifcance has done more to improve the situaton of Britsh women than appeals for legal
change and recogniton
- Wiary of law reforms; look beyond law for solutons
- 'hortcomings of the call to legal reform iuick ly became apparent; the Eiual Pay Act 1070, for
instance, was easily sidestepped by mak ing jobs gender-specifc, men’s being deemed more
valuable.
- In response, feminist lawyers and MPs increasingly put their energies into engagement with the
legal framework s in an efort to improve what we had.
- This artcle contends that ‘existence of divorce law protects married women beter, not female
cohabitants is wrong in principle and anachronistc in practce
- Empowerment through educaton and opportunites for fnancial independence are a beter way
forward for women than ‘protecton’ through matrimonial law
- Feminist vision may best be actualised through resistance or indiference to the gender-specifc
‘protectons’ of matrimonial law.
iduck (2003)
- MARRIAGE: Changing attudes to marriage shows also that part of the atracton of marriage to young
heterosexual men and women was the opportunity to mak e a commitment, not just to a partner, but to a
way of living, by setling down to a stable family life (Reynolds and Mansfeld)
- Attudes to the meaning of marriage changed in line with general trends towards individualisaton, so that
mutuality, negotability and eiuality were cited as important iualites in a ‘successful’ marriage.
, - (Rodger): Modern marriage seems to retain both insttutonal and relatonal elements.
- (Lewis et al): Rather than being based upon expectatons or norms from outside, modern marriages were
based on internal and subjectve conditons that came from the individuals and their negotatons, ofen
speak ing of “commitments instead of “obligatons .
- Marriage thus begins life in the shape of a wilful contract between two independent persons but the
contractual element is soon superseded as the family becomes a ‘single person’ and its members become is
accidents. The unit that is created, as in romantc love, is greater than in the sense of being of more social
value than, its consttuent parts.
- COHABITATION: ('mart) Relatonships found to tend to fall into one of the two conceptual models:
reflexive versus risk relatonships, and that the model adopted was associated with the respondent’s sense
of self
- In risk relatonships, concepts of the self difered more clearly according to gender. Wiomen described a
self that was self-reliant and resourceful and claimed no desire for autonomy or eiuality.
- LAW’S FAMILY: Is thus one in which members assert their autonomy, tak e thoughtul decisions and
conduct themselves according to these ratonal consideratons, but at the same tme it remains within the
confnes of a form of romantc love in which feelings, altruism, co-operaton and self-sacrifce are the
norm.
- It seems that the social, economic and politcal worlds are undergoing vast and turbulent change,
partcularly towards individualisaton and family law has embraced that change, but only on
terms.
- Even the CPA reiuired that each sign, in front of witnesses, a declaraton statng, inter alia, that
he or she is ‘fully aware of the gravity of the fnancial and emotonal responsibilites of
supportng and caring for the other party that he is undertak ing’
- FITZPATRICK: Interestng example of law’s normatve family embracing both change and traditon, yet
remaining disengaged from familial experiences
- espite Fitzpatrick ’s self-identfcaton as a member of Thompson’s family, it took three courts
and much legal machinaton for that identty to receive the authoritatve stamp of the law
- Even then the degree to which law allowed any deviaton from the otherwise normatve family
model was iuestonable
- Fitzpatrick ’s non-heterosexual self was eventually recognised by law as being capable of forging a
familial relatonship with Thompson
- But the language in which the court framed its decision was a far cry from acceptng new
‘narratves of family and of choice, of care and responsibility, of love and loss, of old needs and
new possibilites, of diference and convergence…
- Relatonship was constructed by the court to ft into a defniton of family that accommodated
individual choice, reflexive identty and the responsibilites flowing from that choice or identty,
but which at the same tme demanded altruism, privacy, sexual exclusivity and sacrifce
B Heaphy et al, 'ame-'ex Marriages: New Generatons, New Relatonships (2013)
- Illuminates how, in the interpretaton of law and in public discourse, marriage and civil partnership are for
many intents and purposes one and the same thing.
- Power of marriage-lik e legal arrangements as a strategy for claiming same-sex relatonal; on a par with
those aforded heterosexuals.
- Changing conceptons of who belongs to the mainstream: in this case, married; same-sex couples do while
traditonalist and religious loonies; do not.
- 'ame- sex marriage is one expression of openness of marriage as it signals a detachment from the
reiuirements of sexual and gender diference.
- Wihile some commentators celebrate this development as indicatve of the moment of sexual
citzenship and eiuality,
- Others have link ed it to the broader modernising, renewal and reinvigoraton of marriage along
more democratc and egalitarian gendered lines.
- Critcism of evelopment:
- For some, it illustrates how the natural; order of things, based on clearly defned gendered
diferences and values, is being undermined.
- For others, it is indicatve of something altogether diferent: the triumph of hetero-patriarchy
, where rights and respectability are bestowed on same-sex couples on the basis of adoptng
heterosexual conventons.
- For others stll, it represents the redrawing of relatonal citzenship in line with mark et-driven
neo- liberal values. In the later respect, through marriage, same-sex couples tak e on the fnancial
and caring responsibilites that the neo-liberal state seek s to shed.
- 'trong eforts should be made to view marriage as anthropologically strange, and to eschew already
established common sense and sociological; about its signifcance.
- Heaphy greatly referenced Mansfeld and Collard’s study:
- Wihen an analytcal shif is made from meanings to practces (e.g. with respect to fnances,
expressions of commitment and family-mak ing), ideals about eiual marriage showed clearly that
social and economic structures are stll highly influental in shaping the private relatonships
between husbands and wives, instead of external sources.
- Marriages, M&C noted, were created by the individuals involved in the relatonship, but married
lives were work ed out within the context of the wider society and there was contnual interacton
between their partcipants; images of what marriage should be lik e, could be lik e and would
probably be lik e. In portraying their marriages, their interviewees played with diferent images
and interwove morality, idealism and reality (1088: 10).
- Wihile Mansfeld and Collard argued that the very ordinariness of married life could become a
pitall for those who wish to explore it, Heaphy thought that, in contrast, the ofen assumed
exceptonality of same-sex relatonships could be a similar pitall.
- Heaphy’s study aimed to move beyond the concern with egalitarian ideals and to explore more thoroughly
how such ideals interweave with and/or contradict everyday realites, especially with reference to
fnances, sexuality, couple and broader commitments.
,On Marriage as a - A status has been defned as ‘the conditon of belonging to a class in
society to which the law ascribes peculiar rights and dutes, capacites
'tatus and incapacites’
- 'o, the status view of marriage would suggest that, if a couple
marry, then they are subject to the laws governing marriage,
regardless of their intentons or choices
- Baroness Hale has stated, ‘In family law, marriage is not just a contract; it
is also a status, bringing with it rights and responsibilites, not only as
between the partes, but also as against third partes and the state.
- CP: However, ewar and Park er have suggested marriage
should be regarded as ‘a contractually aciuired status’.
- There are some legal conseiuences which flow automatcally
from marriage and other conseiuences which depend on the
agreement of the partes.
- Eiuality in 'tatus between Two Partes
- Historically, MARRIAGE had a legal and uneiual efect on the
status of the individuals
- Black stone - 1765: the very being or the legal existence of the
woman is suspended during marriage
- Common law doctrine of unity fused husband and wife’s legal
personalites, and the person was the husband (Lord enning in
1082)
- In theory, developed from legally-condoned patriarchy to a
‘partnership of eiuals’
- 'hefeld City Council v E
- (Munby J) Marriage as a civil contract and not a
religious vow in contemporaneous society which is
increasingly secular.
- Both spouses are the joint, co-eiual heads of the
family
- V' CIVIL PARTNER'HIP
- Has nothing lik e the history and ideological baggage of
heterosexual marriage
- Creature of modern statute largely replicatng existng
matrimonial legislaton
- Common law doctrines of unity and consortum presumably
have no applicaton to civil partnership or to same-sex marriage
(but as observed in 'hefeld case, doubtul whether these
doctrines have any modern signifcance to heterosexual
marriages)
On Marriage as a - (O’ onovan) As a contract, it cannot stand.
- Terms are not negotated by the partes, but prescribed by law
Contract - Not a contract freely entered into by any adult but is open only
to certain persons under specifed conditons according to the
law
- Legal marriage reiuires the sacrifce of personal autonomy but
not on eiual terms for the partes
- Instead of a free contract, rather an insttuton where membership may
collectvely agree to a change of rules, but when entering the
insttuton, one does so on terms set by the body
Can Marriage be replaced? Or change the legal signifcance of Marriage?
- Civil partnership registraton (this would enable the law to create a new marriage-lik e status which is free
from the religious and social associatons with marriage)
- Use tort and contract law to deal with all disputes between couples (i.e. the law regulatng couples would
, be the same as the law regulatng two strangers)
- Instead of focusing on sexual relatonships between adults, we could focus on relatonships of
dependency, and so those relatonships which were of signifcance to society would not be based on the
husband–wife relatonship but on the parent–child or carer–dependent-person relatonship. (Fineman,
2004).
(Probert, 2012)
- “Majority of people, or at least of governments, not only in England but
Europe-wide, regard marriage as an age-old insttuton, valued and
valuable, respectable and respected, as a means not only of encouraging
monogamy but also the procreaton of children and their development
and nurture in a family unit in which both maternal and paternal
influences are available ('ir Mark Poter in Wiilk inson)
- Marriage has contractual and insttutonal elements, but it is also sui
generis, a law unto itself (Heaphy, 2013)
1. Wihat is the signifcance of marriage? Wihy, if at all, is it so important in our society?
2. Wihy are there so many formalites for creatng a valid marriage/civil partnership?
,On Marriage as a Every Family Maters (2000) Centre for 'ocial Justce, Ian uncan 'mith Lewis,
`Marriage and Cohabitaton and the Nature of Commitment' (1000) 11 CFLQ 355
'ocial / Legal iduck (2003) Ch 2, Law’s Families
R Probert, (2000) Marriage Law and Practce in the Long Eighteenth Century. 2 A
Insttuton Reassessment (Cambridge: CUP).
B Heaphy et al, 'ame-'ex Marriages: New Generatons, New Relatonships (2013)
– all interestng, but the introducton gives a good overview
Balfour v Balfour [1010] 2 KB 571
Auchmuty (2012)
- 'tatstcs and contemporary commentary show how marriage, once the ultmate and only acceptable
status for women, has declined in social signifcance to such an extent that today it is a mere lifestyle
choice.
- 1. Marriage, from being of such central importance that no other status was acceptable for women in the
1050s, has today lost so much of its power as to have become a mere lifestyle choice for the majority of
Britsh women, and one, moreover, that more and more people are rejectng.
- Historically: Law privileging marriage and contributng to its strong practcal reasons
- This incentve is accompanied by a correlatve disadvantage - fnancial reliance and hence
subservience
- Today: A Britsh 'ocial Attudes survey found that two-thirds of respondents saw litle diference
between marriage and cohabitaton and only one in four thought marriage made people beter
parents. Marriages are more synonymous with weddings, an event, rather than a commitment.
- 2. Wihile many factors contributed to its decline, the most important was the feminist critiue and example.
- 'exual Revoluton: Normalisaton of pre-marital sex, change in conventonal morality, availability
of birth control pill - No need to be ted down in marriage to have sex or as a conseiuence of sex
(i.e. birth)
- Beter Educaton, More Jobs: Greater university atendance rate, beter fnancial independence
- ivorce Law Reform: Ostensible goal was to improve the insttuton of marriage by allowing
couples who were already married to other people to divorce ex spouses. Had the unantcipated
conseiuence of many people living outside marriage.
- Feminism Movement: Rejecton of marriage driven by an analysis, a critiue, a vision of a diferent
society, in which women had choices and alternatves: in Elizabeth Wiilson’s words, women had to
be able to ‘‘imagine a diferent k ind of life for themselves’’ (Wiilson 1077, 14). That vision was
provided by feminism. E.g. Wiomen’s Liberaton Movement
- 3. This loss of signifcance has done more to improve the situaton of Britsh women than appeals for legal
change and recogniton
- Wiary of law reforms; look beyond law for solutons
- 'hortcomings of the call to legal reform iuick ly became apparent; the Eiual Pay Act 1070, for
instance, was easily sidestepped by mak ing jobs gender-specifc, men’s being deemed more
valuable.
- In response, feminist lawyers and MPs increasingly put their energies into engagement with the
legal framework s in an efort to improve what we had.
- This artcle contends that ‘existence of divorce law protects married women beter, not female
cohabitants is wrong in principle and anachronistc in practce
- Empowerment through educaton and opportunites for fnancial independence are a beter way
forward for women than ‘protecton’ through matrimonial law
- Feminist vision may best be actualised through resistance or indiference to the gender-specifc
‘protectons’ of matrimonial law.
iduck (2003)
- MARRIAGE: Changing attudes to marriage shows also that part of the atracton of marriage to young
heterosexual men and women was the opportunity to mak e a commitment, not just to a partner, but to a
way of living, by setling down to a stable family life (Reynolds and Mansfeld)
- Attudes to the meaning of marriage changed in line with general trends towards individualisaton, so that
mutuality, negotability and eiuality were cited as important iualites in a ‘successful’ marriage.
, - (Rodger): Modern marriage seems to retain both insttutonal and relatonal elements.
- (Lewis et al): Rather than being based upon expectatons or norms from outside, modern marriages were
based on internal and subjectve conditons that came from the individuals and their negotatons, ofen
speak ing of “commitments instead of “obligatons .
- Marriage thus begins life in the shape of a wilful contract between two independent persons but the
contractual element is soon superseded as the family becomes a ‘single person’ and its members become is
accidents. The unit that is created, as in romantc love, is greater than in the sense of being of more social
value than, its consttuent parts.
- COHABITATION: ('mart) Relatonships found to tend to fall into one of the two conceptual models:
reflexive versus risk relatonships, and that the model adopted was associated with the respondent’s sense
of self
- In risk relatonships, concepts of the self difered more clearly according to gender. Wiomen described a
self that was self-reliant and resourceful and claimed no desire for autonomy or eiuality.
- LAW’S FAMILY: Is thus one in which members assert their autonomy, tak e thoughtul decisions and
conduct themselves according to these ratonal consideratons, but at the same tme it remains within the
confnes of a form of romantc love in which feelings, altruism, co-operaton and self-sacrifce are the
norm.
- It seems that the social, economic and politcal worlds are undergoing vast and turbulent change,
partcularly towards individualisaton and family law has embraced that change, but only on
terms.
- Even the CPA reiuired that each sign, in front of witnesses, a declaraton statng, inter alia, that
he or she is ‘fully aware of the gravity of the fnancial and emotonal responsibilites of
supportng and caring for the other party that he is undertak ing’
- FITZPATRICK: Interestng example of law’s normatve family embracing both change and traditon, yet
remaining disengaged from familial experiences
- espite Fitzpatrick ’s self-identfcaton as a member of Thompson’s family, it took three courts
and much legal machinaton for that identty to receive the authoritatve stamp of the law
- Even then the degree to which law allowed any deviaton from the otherwise normatve family
model was iuestonable
- Fitzpatrick ’s non-heterosexual self was eventually recognised by law as being capable of forging a
familial relatonship with Thompson
- But the language in which the court framed its decision was a far cry from acceptng new
‘narratves of family and of choice, of care and responsibility, of love and loss, of old needs and
new possibilites, of diference and convergence…
- Relatonship was constructed by the court to ft into a defniton of family that accommodated
individual choice, reflexive identty and the responsibilites flowing from that choice or identty,
but which at the same tme demanded altruism, privacy, sexual exclusivity and sacrifce
B Heaphy et al, 'ame-'ex Marriages: New Generatons, New Relatonships (2013)
- Illuminates how, in the interpretaton of law and in public discourse, marriage and civil partnership are for
many intents and purposes one and the same thing.
- Power of marriage-lik e legal arrangements as a strategy for claiming same-sex relatonal; on a par with
those aforded heterosexuals.
- Changing conceptons of who belongs to the mainstream: in this case, married; same-sex couples do while
traditonalist and religious loonies; do not.
- 'ame- sex marriage is one expression of openness of marriage as it signals a detachment from the
reiuirements of sexual and gender diference.
- Wihile some commentators celebrate this development as indicatve of the moment of sexual
citzenship and eiuality,
- Others have link ed it to the broader modernising, renewal and reinvigoraton of marriage along
more democratc and egalitarian gendered lines.
- Critcism of evelopment:
- For some, it illustrates how the natural; order of things, based on clearly defned gendered
diferences and values, is being undermined.
- For others, it is indicatve of something altogether diferent: the triumph of hetero-patriarchy
, where rights and respectability are bestowed on same-sex couples on the basis of adoptng
heterosexual conventons.
- For others stll, it represents the redrawing of relatonal citzenship in line with mark et-driven
neo- liberal values. In the later respect, through marriage, same-sex couples tak e on the fnancial
and caring responsibilites that the neo-liberal state seek s to shed.
- 'trong eforts should be made to view marriage as anthropologically strange, and to eschew already
established common sense and sociological; about its signifcance.
- Heaphy greatly referenced Mansfeld and Collard’s study:
- Wihen an analytcal shif is made from meanings to practces (e.g. with respect to fnances,
expressions of commitment and family-mak ing), ideals about eiual marriage showed clearly that
social and economic structures are stll highly influental in shaping the private relatonships
between husbands and wives, instead of external sources.
- Marriages, M&C noted, were created by the individuals involved in the relatonship, but married
lives were work ed out within the context of the wider society and there was contnual interacton
between their partcipants; images of what marriage should be lik e, could be lik e and would
probably be lik e. In portraying their marriages, their interviewees played with diferent images
and interwove morality, idealism and reality (1088: 10).
- Wihile Mansfeld and Collard argued that the very ordinariness of married life could become a
pitall for those who wish to explore it, Heaphy thought that, in contrast, the ofen assumed
exceptonality of same-sex relatonships could be a similar pitall.
- Heaphy’s study aimed to move beyond the concern with egalitarian ideals and to explore more thoroughly
how such ideals interweave with and/or contradict everyday realites, especially with reference to
fnances, sexuality, couple and broader commitments.
,On Marriage as a - A status has been defned as ‘the conditon of belonging to a class in
society to which the law ascribes peculiar rights and dutes, capacites
'tatus and incapacites’
- 'o, the status view of marriage would suggest that, if a couple
marry, then they are subject to the laws governing marriage,
regardless of their intentons or choices
- Baroness Hale has stated, ‘In family law, marriage is not just a contract; it
is also a status, bringing with it rights and responsibilites, not only as
between the partes, but also as against third partes and the state.
- CP: However, ewar and Park er have suggested marriage
should be regarded as ‘a contractually aciuired status’.
- There are some legal conseiuences which flow automatcally
from marriage and other conseiuences which depend on the
agreement of the partes.
- Eiuality in 'tatus between Two Partes
- Historically, MARRIAGE had a legal and uneiual efect on the
status of the individuals
- Black stone - 1765: the very being or the legal existence of the
woman is suspended during marriage
- Common law doctrine of unity fused husband and wife’s legal
personalites, and the person was the husband (Lord enning in
1082)
- In theory, developed from legally-condoned patriarchy to a
‘partnership of eiuals’
- 'hefeld City Council v E
- (Munby J) Marriage as a civil contract and not a
religious vow in contemporaneous society which is
increasingly secular.
- Both spouses are the joint, co-eiual heads of the
family
- V' CIVIL PARTNER'HIP
- Has nothing lik e the history and ideological baggage of
heterosexual marriage
- Creature of modern statute largely replicatng existng
matrimonial legislaton
- Common law doctrines of unity and consortum presumably
have no applicaton to civil partnership or to same-sex marriage
(but as observed in 'hefeld case, doubtul whether these
doctrines have any modern signifcance to heterosexual
marriages)
On Marriage as a - (O’ onovan) As a contract, it cannot stand.
- Terms are not negotated by the partes, but prescribed by law
Contract - Not a contract freely entered into by any adult but is open only
to certain persons under specifed conditons according to the
law
- Legal marriage reiuires the sacrifce of personal autonomy but
not on eiual terms for the partes
- Instead of a free contract, rather an insttuton where membership may
collectvely agree to a change of rules, but when entering the
insttuton, one does so on terms set by the body
Can Marriage be replaced? Or change the legal signifcance of Marriage?
- Civil partnership registraton (this would enable the law to create a new marriage-lik e status which is free
from the religious and social associatons with marriage)
- Use tort and contract law to deal with all disputes between couples (i.e. the law regulatng couples would
, be the same as the law regulatng two strangers)
- Instead of focusing on sexual relatonships between adults, we could focus on relatonships of
dependency, and so those relatonships which were of signifcance to society would not be based on the
husband–wife relatonship but on the parent–child or carer–dependent-person relatonship. (Fineman,
2004).
